I think that the order appealed from should be affirmed and that any other doctrine than that laid down by the Appellate Division would be without support in principle, or in the cases. The defendant needed money, in order to prosecute an action to set aside certain provisions of the will of Samuel J. Tilden, deceased. He applied to the plaintiff's husband for that purpose, and the latter procured Dun to advance the money. The agreement between the defendant and the plaintiff's husband was that, in the event of the success of the action, in view of the assistance rendered by the latter, as well as by Dun, the defendant would become responsible for the payment to the plaintiff of the sum of $50,000. The action was successful and the defendant repaid the money loaned. In addition, he gave to the plaintiff a sum of $8,500; but she has brought this action to compel the payment by the defendant of the whole sum mentioned in the agreement.
The question is, whether the plaintiff had a cause of action upon the contract. It seems to me that this case is not brought within that class of cases, wherein a third person is entitled to enforce a promise which has been made by one person to another; because of the absence of the essential element that some liability or duty must exist from the promisee to such third person in connection therewith. As it was held *Page 124 in Durnherr v. Rau (135 N.Y. 219), the rule is that to permit a third party to enforce such a promise, the promisee must have a legal interest that the covenant be performed in favor of the party claiming performance. How was that the case here? Could it be because of the general obligation on the part of the plaintiff's husband to support and maintain her? That, of course, is a well-recognized obligation in the law; but did the contract in question have that for its object? I cannot so regard it. It related solely to the payment of a large sum of money contingently upon the success of a certain litigation, of which the defendant was the promoter, and promised a reward or compensation to the party with whom made for his aid in furnishing the needed moneys. It is perfectly clear that this contract was not based upon marital obligations; but that it was simply a mode, suggested by the husband and adopted by both parties, for the payment by the defendant of the consideration for his, the plaintiff's husband's, services in the matter. It does not appear that the plaintiff's cause of action has any other basis than the mere fact of the marital relation. While that relation imposes strong legal and moral obligations upon the husband, it is difficult to see that they involve a liability on his part to provide a separate estate for his wife and, yet, if there is not that liability, what liability was there towards the plaintiff, which furnished the element, required to exist in order that the third person, the plaintiff here, might claim the right to enforce the promise? It is not necessary that the wife should be privy to the consideration of the promise; but it is necessary that the promisee, her husband, should owe some debt or duty to her, in connection with the promise, to enable her to sue upon it.
I think that the insuperable legal objection to the plaintiff's cause of action is, that the contract in question was not one which looked towards the discharge of any obligation owing by him to her and, therefore, is not enforceable upon the doctrine which underlies the cases where, as in the relation of parent and child, the promisee owed a duty which the contract was supposed to meet. I am prepared to admit, as it is argued, *Page 125 that we should recognize the obligation of the husband to support the wife to be as meritorious as the obligation of the parent to support the child, and, if this contract could be regarded in that light, I might be prepared to extend to the present case the principle of the cases referred to. But, as previously suggested, the relationship between the parties here does not help us out in endeavoring to find support for the plaintiff's cause of action; for the reason that the contract, which is sought to be enforced, does not bear upon the husband's obligation and is not connected with it, but simply provides for the payment of a sum of money as a compensation for his services in the event of success.
In view of the more elaborate discussion in the opinion below, I think nothing more need be said and that the order should be affirmed.
HAIGHT, MARTIN and VANN, JJ., concur with BARTLETT, J., for reversal. PARKER, Ch. J., and O'BRIEN, J., concur with GRAY, J., for affirmance.
Order reversed, etc.